CRITIC’S CORNER: Truth or doubt: Where should the emphasis lie in jury instructions?

Michael D. Cicchini is a criminal defense lawyer in Kenosha. He is also the author or coauthor of two books and 15 law review articles on constitutional law, criminal law and procedure, and other topics. Visit www.CicchiniLaw.com for more information.

The United States Supreme Court held that “the Due Process Clause protects the accused against conviction, except upon proof beyond a reasonable doubt . . .”[1]

In Wisconsin, criminal jury instruction 140 defines reasonable doubt for the jury. Strangely, however, after defining reasonable doubt, the instruction concludes by telling jurors that “you are not to search for doubt. You are to search for the truth.”

Wisconsin criminal-defense lawyers have long complained that this language lowers the state’s burden of proof below the constitutionally guaranteed standard of reasonable doubt. The Fifth Circuit Court of Appeals agrees: “Seeking the truth suggests determining whose version of events is more likely true, the government’s or the defendant’s, and therefore intimates a preponderance of the evidence standard.”[2]

More to the point, a Washington appellate court observed that “truth is not the jury’s job.” Rather, “The question for any jury is whether the burden of proof has been carried by the party who bears it. In a criminal case . . . [t]he jury cannot discern whether that has occurred without examining the evidence for reasonable doubt.”[3]

The problem with Wisconsin’s jury instruction is obvious: Ignoring doubt in favor of a search for the supposed truth is the exact opposite of what a criminal jury should be doing. But despite this, appellate courts continue to permit trial judges to use this pattern jury instruction because, they claim, reasonable doubt is adequately defined elsewhere in the instruction; therefore, the reasoning goes, the instruction’s concluding mandate to ignore doubt in favor of a search for the truth probably doesn’t do any harm.

Lawrence T. White — director of Beloit College’s Law & Justice Program — and I decided to test this widespread judicial assumption. We recruited 298 participants to serve as mock jurors in a controlled study, in which every juror read the identical case summary of a hypothetical criminal trial. The case summary included the elements of the charged crime, a summary of the witness testimony, and the closing arguments of the lawyers.

Jurors were then randomly assigned to one of three groups, each of which received a different jury instruction concerning the prosecutor’s burden of proof.

Group A received a very short burden of proof instruction, and was simply told “to search for the truth.” This group convicted at a rate of 29.6 percent.

Group B received a legally proper reasonable-doubt instruction. This group convicted at a rate of only 16 percent.

Finally, Group C received Wisconsin’s pattern jury instruction 140, which concludes by instructing jurors “not to search for doubt,” but instead “to search for the truth.” This group’s conviction rate jumped back up to 29 percent.

Group C — the group that received Wisconsin’s pattern jury instruction 140—convicted at a rate nearly double that of the group that received a legally proper reasonable doubt instruction, and statistically identical to the group that received no reasonable doubt instruction whatsoever. Because of the large sample size, these findings were significant at the p < .05 level, meaning that we are more than 95 percent certain that the difference in conviction rates was due to the different jury instructions, and was not obtained by chance.

This is strong empirical evidence that Wisconsin’s pattern jury instruction 140 not only lowers, but actually eviscerates, the state’s burden of proof in criminal cases.

These findings empirically prove what prosecutors probably already knew but would not admit: It is easier to convict a defendant when the judge instructs the jurors to disregard doubt and instead search for the truth of what they think really happened. Quite obviously, if prosecutors really believed—as they have often argued—that the disputed truth-related language does not lower the burden of proof, they would not fight so vigorously to preserve the instruction in its current form. Similarly, appellate courts should not be surprised by these findings. The burden of proof beyond a reasonable doubt is the highest burden. When a trial judge defines reasonable doubt for a jury, but then supersedes that instruction with the directive “not to search for doubt,” but instead “to search for the truth,” there is only one reasonable conclusion: The burden of proof will be diminished.

Check on the articles page of CicchiniLaw.com, where I will soon be providing a link to the pre-publication draft of our study, Truth or Doubt: An Empirical Test of Criminal Jury Instructions, 50 U. Richmond L. Rev. ___ (forthcoming, May 2016). With this empirical evidence, the hope is that Wisconsin’s jury-instruction committee and individual trial-court judges will remove the offending language from criminal jury instruction 140.

This will ensure that the state is held to its constitutionally mandated burden of proof, and will prevent it from convicting any more Wisconsin defendants with a mere preponderance of the evidence.